Better Luck This Time: Why Alito Is Hard to Beat

JURIST Contributing Editor William G. Ross, a specialist in constitutional history and the appointment of U.S. Supreme Court justices teaching at Cumberland School of Law, Samford University, says that the US Supreme Court nomination of Judge Samuel Alito will be hard for Democrats or conservative Republicans to defeat...

Opponents of Samuel A. Alito's nomination to the U.S. Supreme Court face an uphill battle to prevent his confirmation. With excellent professional credentials and no apparent scandals in his past, Alito has only one ostensible liability -- his long "paper trail" of conservative judicial opinions. Early accounts of those opinions, however, do not suggest that they are so far out of the mainstream of judicial thought that his opponents can successfully taint him with the tar of radicalism.

No matter how vociferously Alito's opponents oppose his nomination, they are unlikely to persuade a majority of senators to reject it. The arithmetic is compelling. Unless at least six of the Senate's fifty-five Republicans desert the President and a substantial number of Democratic senators join the twenty-two Democrats who voted in opposition to John G. Roberts's nomination, Alito's appointment seems unstoppable.

The Senate rarely rejects Supreme Court nominations. No Senate controlled by the President's party has voted down a Supreme Court nominee since 1930, when the Senate narrowly defeated Herbert Hoover's nomination of John J. Parker. Although a predominately Democratic Senate in 1968 refused to confirm Lyndon Johnson's nominations of Abe Fortas to serve as chief justice and Homer Thornberry to become an associate justice, Johnson made those nominations shortly so near the end of his term that Republicans successfully obstructed the nominations in anticipation of a G.O.P. victory in the November election.

Although both Richard M. Nixon and Ronald Reagan suffered the rejection of two Supreme Court nominees in a row, there is no reason to suppose that there is any kind of a jinx on second-choice nominees. G. Harrold Carswell, whom Nixon nominated in 1970 after the Senate in 1969 rejected Clement Haynsworth, was defeated because he had weak professional credentials and had once publicly advocated racial segregation. Douglas Ginsburg, whom Reagan nominated in 1987 after the Senate voted down Robert Bork, withdrew his name after admitting that he smoked marijuana while a Harvard law professor.

There are only a few conceivable means by which Alito's opponents could derail the nomination.

One possibility would be some type of scandal which would call into question Alito's personal integrity  for example, some type of ethical lapse on the bench, financial irregularities, or illegal conduct. There is, however, no whiff of any such taint involving a man who by all present accounts has led an exemplary life. There is always, of course, the possibility that someone might find something that the administration overlooked in its presumably careful investigation of the nominee's background. An obscure radio reporter, for example, shook the Carswell nomination in 1970 by discovering a white supremacy speech that Carswell had delivered two decades earlier. Such surprises are less likely today, though, because background checks have become more thorough in the wake of a more politicized confirmation process.

Opponents of the nomination likewise are unlikely to succeed in portraying Alito as lacking in judicial temperament since even many of his critics praise his open-mindedness, fairness toward litigants, and courteous courtroom demeanor.

Similarly, ideological objections are unlikely to defeat the nomination. Although many liberals already have alleged that Alito is a dangerous radical who would run roughshod over fundamental constitutional rights, early reports about his judicial record belie this fear. Although Alito often has taken "conservative" positions in cases in which he has participated, he does not appear to have written any opinion that marks him as a fanatic, an ideologue, or an extremist. For example, his dissenting opinion in the Third Circuit's opinion in Planned Parenthood v. Casey in 1991, arguing in favor of the constitutionality of Pennsylvania's requirement that a woman notify her spouse of her intention to have an abortion, was essentially the same position that William Rehnquist, Byron White, Antonin Scalia, and Clarence Thomas adopted in dissent when the case later reached the Supreme Court. Although such a position naturally offends those who favor unfettered abortion rights, it is unrealistic to suppose that Bush would nominate any judge who had taken a broader view of abortion rights. Alito's belief that the state could impose such a limitation on abortion, moreover, does not necessarily demonstrate that he rejects a constitutional right to abortion.

Although Alito has dissented in at least two cases involving employee rights (involving the right to a hearing by a employee who was dismissed on a drug charge and the burden of presenting evidence in a gender discrimination case), his opinions in these cases do not appear to demonstrate any profound disregard of the rights of workers. Moreover, Alito has taken a "liberal" position in a number of cases. For example, he voted in favor of First Amendment claims in cases involving advertisements in a student newspaper and the retention of facial hair by Muslim police officers.

While Alito's critics will continue to scrutinize his judicial opinions, it is unlikely that they will be able to stigmatize the nominee as a radical right-winger.

Perhaps the most likely way in which Alito's nomination could fail is if it became entangled in a broader web of politics. As various historians and political scientists have pointed out, Supreme Court nominations generally fail only if there is some type of catalyst, usually hostility toward the President. Parker's nomination, for example, was defeated in part because of growing antagonism against Hoover in the wake of the growing Depression. Such a process magnifies infirmities that senators otherwise would forgive, with the nomination gradually unraveling in the face of what becomes a juggernaut. To a large extent, the withdrawal of Harriet Miers is an example of this phenomenon, for Bush's slumping popularity emboldened her critics, particularly conservatives who have become increasingly disillusioned with Bush. Miers's nomination became the occasion for long-suffering conservatives finally to stand up against an administration which has so often frustrated their agenda. The nomination also was the last straw for Americans of many political views who have become fed up with the administration's chronic cronyism.

In contrast, there is nothing about Alito that seems to symbolize what is wrong with the Bush Administration. While Alito naturally wouldn't be the choice of most Democrats or liberal Republicans, Bush's political antagonists cannot reasonably expect the president to nominate anyone significantly more moderate. Indeed, there is little reason to suppose that Alito is farther to the right than is Roberts. Since Alito's professional credentials generally are as impressive as Roberts's, it is difficult to understand why Alito would attract more opposition than Roberts received.

[Revised Nov. 1] Perhaps, however, liberals, who have remained virtually silent in the face of so many provocations by Bush, will use the nomination to vent long-pent up frustrations, just as Miers became a lightening rod for conservative disaffection with Bush. If this occurs and liberals mount a protracted fight against the nomination, there is a possibility that the nomination will fall victim to the growing disillusionment with Bush among persons of many political persuasions. Democrats might then derail the nomination with a filibuster, while some Republicans might desert Bush, fearing that voters will retaliate against them for supporting a judicial nominee the Democrats have succeeded in portraying as a dangerous radical. In 1987, for example, a number of Republican senators from heavily Democratic states voted to reject Bork. Similarly, Parker was defeated in 1930 because several Republican senators feared electoral retaliation from the labor and civil rights organizations that had opposed Parker.

At the present time, however, Alito seems headed for confirmation, given his many strengths, his lack of apparent weaknesses, and Republican control of the Senate.

William G. Ross, a JURIST contributing editor, is professor of law at the Cumberland School of Law at Samford University in Birmingham, Alabama. His website is williamgeorgeross.com.
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